Hand Lumber Co. v. Hall

• Court: Supreme Court of Alabama
• Citation: 147 Ala. 561,41 So. 78
• Parties: HAND LUMBER CO. v. HALL.
• Decision Date: 10 May 1906

41 So. 78

147 Ala. 561

HAND LUMBER CO. v. HALL.

Supreme Court of Alabama

May 10, 1906

Appeal from Circuit Court, Baldwin County; William S. Anderson Judge.

"To be officially reported."

Action by Leslie Hall against the Hand Lumber Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

This was an action begun by appellee to recover an attorney's fee. Nearly all the facts necessary to an understanding of the case are set out in the opinion. The check and voucher referred to in the opinion are in words and figures as follows: "To cover voucher 478. Bay Minette, Ala., 5/30 1902. Baldwin County Bank, pay to the order of Leslie Hall $30.00, thirty & 00/100 dollars. J. D. Hand." Indorsed on back of the check: "Leslie Hall." And a voucher in words and figures as follows: Voucher No. 478. Doline Ala., May 30, 1903. Hand Lumber Co., Doline, Ala., to Leslie Hall, Dr. Requisition No. ______. Bay Minette, Ala. In full of all services rendered to any or all of the following companies, viz.: Hand Lumber Company, Tug Lady Jane, Hand Export Company. Paid by check number 76. Authorized: J. D Hand. Approved: ______. Attested correct: G. J. S., Auditor. Received ______, 190-, of Hand Lumber Co., 30 & 00/100 dollars in full of the above amount. Please date, sign, and return at once." The plaintiff testified that he received this check actually attached to the voucher. "I collected the check, and kept the voucher, and did not sign and return it. The indorsement on the check is in my handwriting." It was shown, further, that the check had been previously forwarded to the plaintiff with the voucher attached, which the plaintiff returned, declining to accept it as payment. Afterwards the check and voucher above set out were sent in place of the check and voucher returned.

Stevens & Lyons, for appellant.

Mitchell & Tonsmeire and Gregory L. & H. T. Smith, for appellee.

WEAKLEY C.J.

"The rule that the payment of a less sum than the real debt will be no satisfaction of a larger sum without a release by deed applies only to conceded or undisputed demands. Where the claims are in dispute the compromise and part payment thereof are sufficient consideration to support the discharge." 24 Am. & Eng. Ency. Law (2d Ed.) p. 288. The cases of Barron v. Vandvert, 13 Ala. 232, Pearson v. Thomason, 15 Ala. 700, 50 Am. Dec. 159, and Hodges v. Tenn. Implement Co., 123 Ala. 573, 26 So. 490, each involved an indebtedness by note, and in those cases there was no dispute as to the existence of the indebtedness as evidenced by the written obligations. In each of them the holding was that on part payment of the debt, without surrender of the note, the agreement by the creditor to accept in discharge of the debt a less sum in money than the debtor owed was a nude pact, constituting no bar to a recovery of the balance. Those cases, therefore, do not at all conflict with the settled rule above announced, and which has also been thus stated: "When a claim is unliquidated or in dispute, payment and acceptance of a less sum than claimed in satisfaction operates as an accord and satisfaction, as the rule that the receiving of a part of the debt due, under an agreement that the same shall be in full satisfaction, is no bar to an action to recover the balance, does not apply when the plaintiff's claim is disputed or unliquidated. In such case the concession made by one is a good consideration for the concession made by the other. The fact that the creditor was not legally bound to make any abatement of his claim, or that the amount accepted was much less than the creditor was entitled to receive and would have recovered, had he brought action, does not in any way affect the rule." 1 Cyc. 229.

It is quite true that section 1805 of the Code of 1896, declaring the effect of written releases, receipts, and discharges, has no application to this case, because the plaintiff gave no writing of the kind mentioned in that section. A release, however, at least of a simple contract debt, need not be in writing, and no set form of words is necessary. It may be by parol, may be express or implied, or may result by operation of law. 24 Am. & Eng. Ency. Law (2d Ed.) 284. The dictum in Hart v. Freeman, 42 Ala. 567, that the Code section corresponding with section 1805 of the Code of 1896 requires settlements for the composition of debts to be in writing, was declared in Singleton v. Thomas, 73 Ala. 205, to be erroneous as a general proposition, although correct in the particular case wherein it was uttered. The questions for consideration in this case, therefore, are, first, whether the claims of the plaintiff beyond the sum paid him were conceded, or whether they were disputed or unliquidated; and, second, whether, if the latter, they were discharged by what was written and done between the parties, taken in connection with the collection by the plaintiff of the check, under the circumstances shown by the undisputed evidence.

The appellee contends that "the evidence does not show, nor tend to show, the claim of the plaintiff against defendant for services sued for in this case was ever disputed, nor that the plaintiff's claims against J. D. Hand, or Hand Export Company, or the Baldwin County Bank were ever denied," while the appellant contends just the contrary. The evidence must therefore be examined to settle this question of fact,...